On Monday,
November 14, 2005, the U. S. Supreme Court issued a decision in Schaffer
v. Weast. Justice Sandra Day O'Connor wrote the decision and
was joined by Stevens, Scalia, Kennedy, Souter, and Thomas. Justices
Ginsberg and Breyer filed dissenting opinions. Chief Justice Roberts
recused himself and did not take part in the case. Read
decision. Read
Alert.

The majority held that, "The burden of proof in an administrative
hearing challenging an IEP is properly placed upon the party seeking
relief. In this case, that party is Brian, as represented by his parents.
But the rule applies with equal effect to school districts: If they
seek to challenge an IEP, they will in turn bear the burden of persuasion
before an ALJ." Read
decision.

The NCD's position is that the burden of proof should always be on
school districts. This comprehensive
paper describes the history of the Schaffer case and the
Court's history in resolving similar cases where the federal statute
does not assign the burden of proof to one party or the other. Download

On
February 22, 2005, the U. S. Supreme Court agreed to resolve a split
among circuits on whether parents or school districts bear the burden
of proof in special education due process hearings. The Court will
hear probably hear oral argument in Schaffer v. Weast in October
or November, 2005. Read
article

In 1998,
the administrative law judge (ALJ) imposed the burden
of proof on the parents and ruled for the school district on the merits
of the childs individualized
education program (IEP).

In 2000, the district court reversed the ALJ on the burden of proof
issue, placed the burden on the school district, and remanded the
case for further proceedings. This decision is published as Brian S. v. Vance, 86 F. Supp.
2d 538 (D. Md. 2000).

In 2000, with the burden of proof placed on the school district, the
ALJ ruled for the parents on the merits, holding that the IEP proposed
by the school district was inappropriate and that the program favored by the parents was appropriate.

In 2001, without deciding the burden of proof issue, the court of
appeals vacated the district courts 2000 decision and remanded
the case for further proceedings,including an appeal from the ALJs second decision on the merits.
The opinion is found at Schaffer v. Vance, 2 Fed. Appx. 232
(4th Cir. 2001) (per curiam).

In 2004, the U. S. Court of Appeals reversed the district court on
the burden of proof issue, imposed the burden on the parents and remanded
the case. This decision is published as Weast
v. Schaffer, 377 F.3d 449 (4th Cir. 2004). In this decision,
the appeals court assigned the burden of proof to the party
who initiated the special education due process hearing and created
a "split among circuits":

"Other circuits are split - and splintered in reasoning - on
this question. Three circuits assign the burden to the parents, and
four (perhaps five) assign it to the school system."

"Under
the Individuals with Disabilities Education Act, when parents of a
disabled child and a local school district reach an impasse over the
childs individualized education program, either side has a right
to bring the dispute to an administrative hearing officer for resolution.
At the hearing, which side has the burden of proof  the parents
or the school district?" (Petitioner's
Brief, page 2)

Amicus
Brief Filed on Behalf of Law and Disability Organizations including
the Council
of Parent Attorneys and Advocates; National Association of Protection
and Advocacy Systems; American Association of People with Disabilities;
National Children's Law Network; Education Law Center of New Jersey;
Education Law Center of Pennsylvania; Alexander Graham Bell Association
for the Deaf and Hard of Hearing; Bazelon Center for Mental Health
Law; Center for Law and Education; University of Richmond's School
of Law Disability Law Clinic; Disability Rights Education and Defense
Fund, Inc.; TASH, Inc.; Western Law Center for Disability Rights.
(39 pages) http://www.harborhouselaw.com/law/plead/schaffer.amicus.orgs2.pdf

By June 24, 2005, briefs had been filed on behalf of Montgomery
County by Hawai'i (joined by Alaska, Oklahoma and Guam), Montgomery
County and Weast, the Virginia School Board Association, the Council
of Great City Schools, and the U. S. Department of Education:

News
June 24, 2005.Superintendent
Weast and Montgomery County Public Schools filed their brief with
the U. S. Supreme Court. The U. S. Department of Education, reversing
themselves from their earlier position before the Fourth Circuit,
this time filed a brief in support of Weast. Numerous other organizations
and several states filed briefs in support of Weast. We do not have
all briefs yet. The listing of those received and the URL's are listed
above.

April
29, 2005. An amicus
brief was filed on behalf of various autism organizations including
the Autism Society of America, Northern Virginia Chapter (ASA-NV);
Parents for Autistic Childrens Education (PACE); Parents
Of Autistic Children of Northern Virginia (POAC-NoVA), Inc.; and Unlocking
Autism (UA). (34 pages) DownloadApril 29, 2005. An amicus
brief was filed on behalf of several law and disability advocacy organizations.
These organizations include the Council
of Parent Attorneys and Advocates; National Association of Protection
and Advocacy Systems; American Association of People with Disabilities;
National Children's Law Network; Education Law Center of New Jersey;
Education Law Center of Pennsylvania; Alexander Graham Bell Association
for the Deaf and Hard of Hearing; Bazelon Center for Mental Health
Law; Center for Law and Education; University of Richmond's School
of Law Disability Law Clinic; Disability Rights Education and Defense
Fund, Inc.; TASH, Inc.; Western Law Center for Disability Rights. Download.

February
22, 2005. The U. S. Supreme Court granted certiorari to
hear Brian Schaffer's appeal of an adverse ruling from the U. S. Court
of Appeals for the Fourth Circuit. The Fourth Circuit decision assigns
the burden of proof to the party who initiates the special education
due process hearing. Read
articleTo TopMore news.